May 12, 2006
Q&A:
The DRA’s Medicaid Citizenship Documentation Requirements
The following Q&A is adapted from an in-depth analysis of the Citizenship Documentation Requirements, available at www.healthlaw.org.
1. What does the citizenship documentation provision address?
The citizenship documentation requirements are in Section 6036[1] of the Deficit Reduction Act (DRA). The provision requires states to document the U.S. citizenship of some, but not all, Medicaid participants. Effective July 1, 2006, the provision applies to both new applicants and current recipients (at the time of recertification/redetermination), who declare themselves to be a citizen or national of the United States under 42 U.S.C. § 1320b-7(d) for purposes of establishing Medicaid eligibility.
2. Who is subject to this provision?
The requirements apply to most citizens and nationals of the United States. The requirements do not impose any new documentation requirements on non-citizen immigrants.[2] Prior to the DRA, citizens were generally able to attest to their citizenship under penalty of perjury to establish Medicaid eligibility. Most states’ policies only required documentation of citizenship when there was a reason to question an applicant’s attestation.
3. Who is not subject to this provision?
Section 6036 of the DRA by its terms only applies to citizens and nationals who attest to their citizenship under § 1320b-7(d) for the purpose of getting Medicaid. This does not include:
· SSI recipients (who do attest under § 1320b-7(d), but do so to get SSI, not Medicaid)
· Children in foster care receiving Title IV-E foster care payments (who do not attest at all)
· Perhaps some TANF recipients
SSI and Foster Care recipients receive Medicaid automatically under 42 U.S.C. § 1396a(a)(10)(i)(I) because they receive SSI or foster care payments. TANF recipients, depending on state law, may also automatically qualify for Medicaid. If so, then they are in the same situation as SSI recipients.
4. But the provision also refers to “aliens” – does it apply to them?
The provision states that it does not apply to any “alien” eligible for Medicaid who is also:
· entitled to or enrolled for any Medicare benefits;
· receiving Medicaid because of receipt of SSI benefits; or
· eligible for Medicaid on another basis specified by the Secretary of HHS under which satisfactory proof of U.S. citizenship or nationality has been previously presented.
The statutory reference to “alien” is a drafting error that is inconsistent with the rest of the provision. Members of Congress have discussed a bill to fix technical mistakes like this one, but to date no bill has been introduced.
5. Will current Medicaid enrollees have to provide documentation at recertification or redetermination?
It depends. If an individual is subject to the documentation requirements (see Q. 2 above), they will likely have to provide documentation at recertification/redetermination unless they already did so upon initial application for Medicaid. States are limited in the scope of information they can request at recertification/redetermination to that which is subject to change and may affect ongoing eligibility.[3] In addition, according to CMS guidance, states must review existing data sources before requesting information.[4]
Individuals who are exempt from the documentation requirements (recipients of SSI, Title IV-E foster care children, and perhaps some TANF recipients) should not have to provide documentation, as the only fact relevant to their ongoing Medicaid eligibility is their continued receipt of the other benefit.
6. What documents can be used to prove citizenship?
The statutory language specifies certain documents as acceptable. Generally, an individual must provide proof of both citizenship and identity. Some documents can accomplish both:
· U.S. passport
· Certificate of Naturalization (Form N-550 or N-570)
· Certificate of U.S. Citizenship (Form N-560 or N-561)
· A valid state-issued driver’s license or identity document described in 8 U.S.C. § 274A(b)(1)(D) (Immigration and Nationality Act), but only if the state requires proof of U.S. citizenship prior to issuance or obtains and verifies the individual’s Social Security Number
· For individuals under age 16 or in a State which does not provide for issuance of an identification document (other than a driver’s license), documentation of personal identity of such other type as the U.S. Attorney General finds, by regulation, provides a reliable means of identification but only if the state requires proof of U.S. citizenship prior to issuance or obtains the individual’s Social Security Number and verifies its accuracy.
· Other documents as the Secretary of HHS may allow, by regulation, that provide proof of U.S. citizenship/nationality and “a reliable means of documentation of personal identity.”
If a person does not have one of the above documents, he/she must provide one document verifying citizenship and another verifying identity:
Citizenship Documents /Identity Documents
· Birth certificate from U.S. birth· Certificate of birth abroad (Form FS-545 or DS-1350)
· U.S. Citizen Identification Card (Form I-97)
· Report of Birth Abroad of a Citizen of the U.S. (Form FS-240)
· Such other document as the Secretary of HHS may specify that provides proof of citizenship or nationality / · A state driver’s license or similar identity document if it contains a photograph of the individual or identifying information found sufficient by the Attorney General, but only if the state requires proof of U.S. citizenship prior to issuance or obtains the individual’s Social Security Number and verifies its accuracy. See 8 U.S.C. 1324a(b)(1)(D); 8 C.F.R. §274a.2.
· In the case of individuals under age 16 or in a State which does not issue identification documents (other than a driver’s license), documentation of personal identity as the Attorney General finds provides a reliable means of identification but only if the state requires proof of U.S. citizenship prior to issuance or obtains the individual’s Social Security Number and verifies its accuracy. Id.
· Other documentation specified in regulations by the Secretary of HHS that provides a reliable means of identification.
7. Can any other documents be used?
Section 6036 allows the Secretary to designate other acceptable documents that prove citizenship and/or identity. The Centers for Medicare & Medicaid Services has not issued guidance or regulations on this provision. According to some sources, it may not do so until early in 2007. In the interim, existing guidance should apply.
8. How should states implement this provision?
To lessen the impact on Medicaid applicants and enrollees, as well as the administrative burden on states to implement this provision, states should accept as wide an array of documents as possible. Until CMS issues superceding guidance or regulations, states should use existing CMS guidance which outlines a wide array of acceptable documents. This guidance is available at http://www.cms.hhs.gov/MedicaidEligibility/05_Immigrants.asp#TopOfPage.
In addition, because SSI recipients prove their citizenship to the Social Security Administration (SSA), states should also accept citizenship verification documents designated by SSA. These can be found in an SSA transmittal – RM 00203.310 Evidence of U.S. Citizenship for an SSN Card, available at https://s044a90.ssa.gov/apps10/poms.nsf/lnx/0100203310!OpenDocument&Click=.
Advocates can work with their state Medicaid officials to determine which additional documents to utilize. States should also be reminded that CMS is obligated to reimburse them fully for any costs they incur to implement the citizenship verification requirements of § 6036, probably including payment for any documents required by an applicant of recipient.[5]
9. What happens if an individual cannot provide documentation?
Individuals may not have documents for a number of reasons. For example, evacuees from hurricanes Katrina and Rita may have lost all documents and state vital records may have been destroyed. In addition, a large number of native-born citizens, for a variety of reasons, simply do not have a valid birth certificate or passport readily available.[6] For much of the 20th century, many hospitals in this country, especially in the South, would not admit African-Americans; and many other disadvantaged citizens, including Native Americans and rural Whites, simply could not afford or access a hospital birth. As a result, many members of these groups were born at home and do not have birth certificates. A 1950 study found that one out of five African Americans lacked a birth registration.[7] According to a recent survey by the Center on Budget and Policy Priorities, 3.2 to 4.6 million U.S.-born citizens do not have a U.S. passport or birth certificate readily available.
It is unclear what might happen if an individual is unable to obtain citizenship documentation. Section 6036 does not make documentation of citizenship an eligibility requirement for Medicaid, and in fact the Medicaid Act prohibits state Medicaid plans from having such a provision.[8] Rather, the DRA provides that federal financial participation will be denied to states for individuals whose citizenship has not been properly documented. It is unclear whether CMS can affirmatively enforce these requirements against states or whether it must initiate funding denial or termination actions against non-complying states.
10. What can states do to assist individuals who lack necessary documents?
States should accept a wide array of documentation of citizenship, should pay for required documentation when necessary and should bill CMS for any costs involved in doing so. See fn. 5. For example, states should be encouraged to pay the costs of obtaining a birth certificate or passport for a Medicaid applicant or enrollee otherwise unable to obtain that documentation and submit the costs for full federal reimbursement under 42 U.S.C. § 1396b(a)(4).
11. How will individuals be informed about this new requirement?
Congress required the Secretary of HHS, “as soon as practicable,” to establish an outreach program to educate individuals likely to be affected by the new requirements. As the July 1 effective date approaches, no outreach program has been announced but early indications are that the Secretary may attempt to shift this responsibility for outreach to the states.
12. Why was this provision included in the DRA?
This provision was added to the DRA at the request of Georgia Republican Representatives Charlie Norwood and Nathan Deal who said they wanted to prevent undocumented immigrants from enrolling in Medicaid. However, a report by the HHS Office of the Inspector General found no substantial evidence that undocumented immigrants are fraudulently getting Medicaid coverage by claiming they are citizens. That report did not recommend requiring the documentation of citizenship. State officials interviewed for the report noted that such a requirement would add significant administrative costs and burdens, requiring the hiring of additional eligibility personnel. See HHS, OIG, Self-Declaration of U.S. Citizenship for Medicaid (July 2005), at http://oig.hhs.gov/oei/reports/oei-02-03-00190.pdf.
13. What if I need more information?
A more detailed analysis of this provision is available on NHeLP’s website, www.healthlaw.org.
If you need additional assistance, please feel free to contact Steve Hitov () or Mara Youdelman () in NHeLP’s Washington DC office. The telephone number is 202-289-7661.
National Health Law Program 2
[1] Section 6036 adds 42 U.S.C. §§ 1396b(i)(22) and 1396b(x) to the Medicaid Act.
[2] Non-citizen immigrants are eligible for Medicaid in limited circumstances and must provide proof of their immigration status as part of their application.
[3] 42 CFR §§ 435.902 and 435.916.
[4] Letter to State Medicaid Directors, April 7, 2000, archived at http://www.cms.hhs.gov/SMDL/
[5] See 42 U.S.C. § 1396b(a)(4) and NHeLP’s longer analysis, The DRA’s Medicaid Citizenship Documentation Requirements, available at www.healthlaw.org.
[6] Ironically, immigrants who become naturalized citizens are often in a better position to verify citizenship than those who are native-born because they are more likely to possess recent documentation.
[7] Shapiro, S. 1950. “Development of Birth Registration and Birth Statistics in the United States.” Population Studies 4:86-111.
[8] 42 U.S.C. § 1396a(b)(3).